Page:Federal Reporter, 1st Series, Volume 8.djvu/868

 864 PEDBBAL REPORTER. �Mabtindale V. Waas and another. lUireuit Court, D. Minnesota. iSeptember, 1881.) �1. ConTRACTS— Time Not of thk Essence. �Time is not of the essence of a contract to convey real estate, in tlio absence of any express provision. �2. SaME — CONCUHEBNT CONDITIONS. �When, in an agreement for the sale of real estate, the same day has been fized for the payment of the raoney and the delivery of the deed, the two sida» of the contract will be mutual and concurrent conditions. �3. Same — Tender op PBRFOKMAifCB. �The expression of a willingness to gire a deed is not a sufflcient tender of performance where the agreement was to giv^ a deed and also assign an inter- est in a lease. �Suit brought to enforce specifie performance of a contract for th© sale of real estate. �A. F, Scott, for complainant. A. F. Foster, for defendants. �FAOTS. �Nelson, D. J. The defendants, on January 23, 1880, entered int» a writteu contract for the cou voyance to complainant of the soutb half of a lot, designated on' the government plat as lot No. 7, in the W. |- of section 5, township 28, range 23, together with water-rights, etc. John Waas negotiated the sale. The land was supposed to contain 18.25 acres, and the complainant agreed to pay $121.92 par acre. The defendants were to have the land surveyed, and proper monuments placed, so as to show the quantity sold, and a suitable plat or map made and a copy furnished the complainant, and the quantity of land shown by the survey was to be paid for, whether more or less than 18.25 acres. �The defendants also agreed that their two daughters should execute to complainant a quitclaitn deed of the premises sold, containing a grant of right of way for public streets or avenues running northerly and southerly through the north and south half of said lot, as the complainant might desire. They also agreed to assign over to the complainant 67-150, the share in a lease given to one Hans Johnson, of the premises sold, with adjoining lands, in which lease Johnson agreed to pay a rental of $150 per annum. The complainant -peLid $100 down on January 23d, when the contract was executed, and the balance was to be paid on February 6, 1880, upon the fulfilment, by defendants, of the provisions which were agreed to, and the execution ��� �